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24.Feb.2012

A Court of Appeal judge has expressed concern at the “almost automatic” response of many employers, when faced with allegations of maltreatment by employees such as nurses, to suspend the staff members concerned and forbid them to contact anyone.

Such action is often taken as soon as a complaint is made and quite irrespective of the likelihood of the complaint being established, Lord Justice Elias said.

The judge made the comments in a footnote to a ruling in Crawford & Anor v Suffolk Mental Health Partnership NHS Trust [2012] EWCA Civ 138, a case involving the suspension and subsequent dismissal of two nurses.

The appellants, Mrs Crawford and Mr Preston, were employed by the Trust until their employments were terminated on 13 March 2009. They had been accused of alleged gross misconduct arising out of the way in which they handled a patient known as JE on 22 September 2008.

A complaint had been received about the handling of JE, an 87-year-old dementia sufferer, including that he had been tied to a chair with a sheet. This was something vehemently denied by the two nurses.

However, the incident led to Mrs Crawford and Mr Preston being suspended and the police notified of potential criminal offences.

A subsequent investigation led to disciplinary proceedings. The process took six months before the two nurses had their employment terminated. Neither had had any previous disciplinary issues.

Mrs Crawford and Mr Preston lodged a claim for unfair dismissal and were successful in the Employment Tribunal. The Trust succeeded in having this ruling overturned in the Employment Appeal Tribunal.

The appellants then sought to restore the original ET decision, and the Court of Appeal has now upheld their appeal in part. Lord Justice Elias said there was “obvious justification” for restraining JE, who on the day in question had been “agitated, aggressive, hitting things, spitting, swearing, throwing drinks, kicking and punching, and generally requiring particularly close attention”.

The matter has been remitted to the same Tribunal for it to determine, in the light of the judgment, whether it would be appropriate to reduce the compensation in accordance with the Polkey principles.

On the issue of suspensions and notification of the police, Lord Justice Elias said in his footnote: “As Lady Justice Hale, as she was, pointed out in Gogay v Herfordshire County Council [2000] IRLR 703, even where there is evidence supporting an investigation, that does not mean that suspension is automatically justified. It should not be a knee jerk reaction, and it will be a breach of the duty of trust and confidence towards the employee if it is.

“I appreciate that suspension is often said to be in the employee's best interests; but many employees would question that, and in my view they would often be right to do so. They will frequently feel belittled and demoralised by the total exclusion from work and the enforced removal from their work colleagues, many of whom will be friends. This can be psychologically very damaging."

The Court of Appeal judge pointed out that even if the individuals are subsequently cleared of the charges, the suspicions are likely to linger, “not least I suspect because the suspension appears to add credence to them”.

Lord Justice Elias added that it would be an interesting piece of social research to discover to what extent those conducting disciplinary hearings subconsciously started from the assumption that the employee suspended in this way was guilty and looked for evidence to confirm it.

“It was partly to correct that danger that the courts have imposed an obligation on the employers to ensure that they focus as much on evidence which exculpates the employee as on that which inculpates him,” he said.

The judge clarified that he was not suggesting that the decision to suspend in this particular case was a knee jerk reaction.

“The evidence about it, such as we have, suggests that there was some consideration given to that issue,” he said. “I do, however, find it difficult to believe that the relevant body could have thought that there was any real risk of treatment of this kind being repeated, given that it had resulted in these charges. Moreover, I would expect the committee to have paid close attention to the unblemished service of the relevant staff when assessing future risk; and perhaps they did.”

But the Court of Appeal judge went on to say that – whatever the justification for the suspension – he found it “little short of astonishing that it could ever have been thought appropriate to refer this matter to the police”.

He added that it almost defied belief that anyone who gave proper consideration to all the circumstances of this case could have thought that they were under any obligation to take that step.

“I recognise that it is important that hospitals in this situation must be seen to be acting transparently and not concealing wrongdoing; but they also owe duties to their long serving staff, and defensive management responses which focus solely on their own interests do them little credit,” the judge said.

“Being under the cloud of possible criminal proceedings is a very heavy burden for an employee to face. Employers should not subject employees to that burden without the most careful consideration and a genuine and reasonable belief that the case, if established, might justify the epithet ‘criminal’ being applied to the employee's conduct. I do not think that requirement was satisfied here.”

Lord Justice Elias pointed out that no-one had suggested that the appellants were acting other than in the best interests of JE and the other patients.

“The restriction was not essentially different to the physical restraint which had been carried out in the day shift,” he found. “I can only assume that the relevant committee was influenced, as I suspect Mr Mansfield [the Service Manager for Rehabilitation and Recovery] was, by the fact that technically tying JE to the chair was an assault, with the implication that this is a grave matter.

“But so is it an assault when nurses physically restrain a patient, or compel him to wear a mask when he is spitting at people, as happened with JE. There was obvious justification for restraining this patient, even if the appropriate procedures for doing so were not employed, and in my view the police should never have been involved.”

Philip Hoult

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23.Feb.2012

Judges in the Court of Protection have to consider a range of competing authorities when considering cases over the capacity to consent to sexual relations. The Court of Protection team at 39 Essex Street report on the latest ruling.

In A Local Authority v H [2012] EWHC 49 (COP) H was 29 years old and had mild learning difficulties and atypical autism. She attended special school from aged 5 to 17, Community College until aged 19 and then led an itinerant lifestyle until admitted to a psychiatric hospital (initially as an informal patient) in 2009.

H's history demonstrated both a very early and a very deep degree of sexualisation. She was highly vulnerable and exhibited dis-inhibition including a willingness to engage in sexual activities with strangers. By the time of her admission to hospital in 2009, at least one man had been convicted of a sexual offence against her.

H’s admission to hospital became compulsory under s.3 Mental Health Act 1983 on 20 November 2009 and thereafter authorisation was renewed until her ultimate discharge in August 2011. Her behaviour in hospital often displayed highly sexualised and bizarre features. Attempts were made both to ascertain what she understood about sexual relations and to give some education in issues of self-protection.

Proceedings were started in the Court of Protection on 16 October 2010. The Official Solicitor acted as H’s litigation friend throughout those proceedings.

On 15 December 2011, Hedley J made a number of orders that were uncontroversial on the evidence. Namely, that H lacked capacity to litigate, to determine her residence, her care and support arrangements, contact and her finances.

Hedley J also held that H lacked capacity to consent to sexual relations. In light of this finding he made a consequential order in her best interests authorising a restrictive regime, including 1:1 supervision at all times - a regime which was expressly designed to prevent H from engaging in sexual relations which she would otherwise willingly do. Hedley J noted that this regime undoubtedly amounted to a deprivation of her liberty but that the parties accepted that in light of Hedley J’s finding as to H’s capacity to consent to sexual relations, the best interests judgment was sound.

In reaching his judgment on this issue, Hedley J noted that on the facts of the case, given that H had no difficulty communicating, the question of her capacity to consent to sexual relations turned on the factors set out in section 3 (1) (a) – (c) MCA 2005. He was referred by the parties to five reported decisions:

1. XCC v MB, NB & MAB [2006] 2 FLR 968 (Munby J);
2. Local Authority X v MM [2007] EWHC 2003 Fam (Munby J);
3. R v C [2009] UKHL 42;
4. DCC v LS [2010] EWHC 1544 Fam (Roderick Wood J);
5. DBC v AB [2011] EWHC 101 COP (Mostyn J).

Hedley J held that none of these decisions were binding on the High Court (as it related to the Sexual Offences Act 2003, the decision of the House of Lords in R v C was obiter) and recorded that it was accepted by all counsel that the decisions could not be reconciled with one another. The Judge indicated that rather than subject each decision to critical analysis, his approach was to acknowledge those decisions, and then attempt an analysis of his own from first principles, guided by the statute, and then (and only then) to compare (and no doubt contrast) his conclusions with those reached in the five cases.

At paragraphs 20 to 21 of his judgment Hedley J held that a sexual act between humans is a complex process which has “not just a physical but an emotional and moral component as well.”

He further emphasised that it is “important to remember that possession of capacity is quite distinct from the exercise of it by the giving or withholding of consent. Experience in the family courts tend to suggest that in the exercise of capacity humanity is all too often capable of misguided decision making and even downright folly. That of itself tells one nothing of capacity itself which requires a quite separate consideration.”

Hedley J noted that whilst these issues arise both under the criminal and the civil law, and it would be desirable for there to be no unnecessary inconsistency in approach, capacity does arise in different contexts and, in a case such as the present, capacity has to be decided in isolation from any specific circumstances of sexual activity as the purpose of the capacity enquiry is to justify the prevention of any such circumstances arising.

In terms of the analysis to be carried out under section 3(1) MCA 2005, at paragraphs 23-26, Hedley J held the following:

“23. First comes the question of understanding the relevant information, but what is that? Clearly a person must have a basic understanding of the mechanics of the physical act and clearly must have an understanding that vaginal intercourse may lead to pregnancy. Moreover it seems to me that capacity requires some grasp of issues of sexual health. However, given that that is linked to the knowledge of developments in medicine, it seems to me that the knowledge required is fairly rudimentary. In my view it should suffice if a person understands that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom. I do not think more can be required.

24. The greater problem for me is whether capacity needs in some way to reflect or encompass the moral and emotional aspect of human sexual relationships. I have reflected long and carefully on this given Miss Jenni Richards Q.C.’s challenge to formulate and articulate a workable test. In relation to the moral aspect, I do not think it can be done. Of itself that does not alarm me for two reasons: first, I think the standard for capacity would be very modest not really going beyond an awareness of ‘right’ and ‘wrong’ behaviour as factors in making a choice; and secondly, the truly amoral human is a rarity and other issues would then come into play. Accordingly, although in my judgment it is an important component in sexual relations it can have no specific role in a test of capacity.

25. And so one turns to the emotional component. It remains in my view an important, some might argue the most important, component; certainly it is the source of the greatest damage when sexual relations are abused. The act of intercourse is often understood as having an element of self-giving qualitatively different from any other human contact. Nevertheless, the challenge remains: can it be articulated into a workable test? Again I have thought long and hard about this and acknowledge the difficulty inherent in the task. In my judgment one can do no more than this: does the person whose capacity is in question understand that they do have a choice and that they can refuse? That seems to me an important aspect of capacity and is as far as it is really possible to go over and above an understanding of the physical component.

26. That then would be my analysis of the requirements for capacity to consent to sexual relations. Whilst I accept of course that human sexual relations are particularly person as well as situation specific, I would be disposed to view that in terms of whether any specific consent was (or in these circumstances) could be given. The difficulty in the Court of Protection is the need to determine capacity apart from specific persons or situations: H is in one sense a classic illustration of the problem. On the other hand one can see as a criminal lawyer the difficulties raised by a general finding in relation to a person who without knowledge of it embarks on what he thinks is consensual sexual activity.

The focus of the criminal law must inevitably be both act and person and situation sensitive; the essential protective jurisdiction of this Court, however, has to be effective to work on a wider canvas. It is in those circumstances that I find myself closer to the views expressed by Munby J. (as he then was) and Mostyn J. although I have reached that position by a more tortuous route.”

On the facts, Hedley J considered that H lacked capacity to consent to sexual relations on two specific bases: first, that she did not understand the health implications of sexual relations, a matter made more serious in this case by her history of multiple partners indiscriminately accommodated; and secondly, that she could not deploy the information she had effectively into the decision making process. Those matters were evidenced both by the history of the case and the expert psychiatric assessment that had been undertaken.

Two further issues fell for consideration:

• H’s capacity to marry; and
• H’s capacity in relation to contraception.

As to H’s capacity to marry, Hedley J noted that this raised more complex issues than capacity to consent to sexual relations but for so long as marriage requires sexual intercourse for its consummation, it must follow that the person who lacks capacity to consent to sexual relations (as H did) must lack capacity to marry. However, as H showed no present disposition to marry there was no purpose in making a formal declaration as to her capacity in this regard.

Hedley J also considered it premature to make a declaration as to H’s capacity in respect of contraception but noted that she had some basic understanding and could learn more. He therefore considered that the present focus should be on improving her education in this regard.

Guest Commentary by Jenni Richards QC (Counsel for H)

The uncertainty over the correct legal test for capacity to consent to sexual relations continues. In A Local Authority v H both the applicant local authority and the Official Solicitor agreed that the correct approach was that set out by, amongst others, Mostyn J in DBC v AB [2011] EWHC 101 COP, namely that the capacity to consent to sex remains act-specific and requires an understanding and awareness (1) of the mechanics of the act, (2) that there are health risks involved, particularly the acquisition of sexually transmitted and sexually transmissible infections and (3) that sex between a man and a woman may result in the woman becoming pregnant.

The parties acknowledged, however, that neither the decision of Mostyn J nor any of the other authorities addressing this issue were binding on a High Court Judge sitting as a nominated judge of the Court of Protection. It was Hedley J who identified for debate at the hearing the question of whether the test for capacity should encompass an emotional and/or moral component. Both the local authority and the Official Solicitor argued against this proposition, and contended that a workable test encompassing the moral and/or emotional elements of human sexual relationships could not be formulated.

In a characteristically thoughtful judgment Hedley J concluded that the moral dimension, although an important component in sexual relations, can have no specific role in assessing capacity. Likewise he acknowledged the difficulty in articulating a workable test that could embrace the emotional consequences of human sexual relations. However, his judgment identifies an important additional factor, namely that P must be able to understand that they have a choice and that they can refuse. Whether this additional factor will lead to different outcomes than would be obtained from simply applying the three criteria identified in Mostyn J’s judgment remains to be seen.

Hedley J’s judgment usefully addresses the extent of understanding of the health risks of sexual relations that is required in order for P to have capacity. To expect P to have an understanding of the precise health risks associated with different forms of sexual activity and different sexually transmitted diseases might require more of P than many adults without any impairment of, or disturbance in the functioning of, the mind or brain. Sensibly Hedley J has concluded that the knowledge required is fairly rudimentary. It should suffice if the person understands that sexual relations may lead to significant ill-health and that those risks can be reduced by precautions like a condom.

Ultimately, however, Hedley J’s judgment reinforces the need for this issue to be considered at appellate level. Otherwise it is inevitable that in every case involving sexual capacity the Court of Protection Judge will have to consider the competing arguments and authorities and form their own view of the correct approach, thereby adding to the abundance of conflicting High Court authority on the point.

This article was prepared by the Court of Protection team at 39 Essex Street.

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20.Feb.2012

The Supreme Court decided earlier this month not to review the correctness of a 1997 House of Lords ruling which permits local authorities to take their resources into account when meeting assessed needs for social care, it has emerged.

The case of R (on the application of KM) v Cambridgeshire County Council had been hailed as potentially the “biggest community care case in 15 years” as it was expected to consider the ruling in R v Gloucestershire CC ex p Barry [1997] AC 584. The claimant’s appeal had the backing of four national charities – Sense, Guide Dogs, the National Autistic Society, and RNIB.

But the seven Supreme Court justices allocated to the KM case decided after hearing submissions that they did not want to hear arguments on the correctness of Barry.

As a result, the principles in Barry will still apply to community care decisions under s. 2 of the Chronically Sick and Disabled Persons Act 1970.

The KM case relates to the appropriate payment to meet the needs of a 26-year-old man with a range of serious physical and mental disabilities.

The Supreme Court did go on to consider – and has reserved judgment – on the issues of whether the level of explanation given by Cambridgeshire was adequate and whether the decision was irrational because the amount was manifestly insufficient to meet the appellant’s assessed eligible needs.

Cambridgeshire applied a Resource Allocation Scheme to work out the appropriate payment in KM’s case. It also made additional funding available through an Upper Banding Calculator, which it uses in severe cases.

The council calculated the direct payment required to meet KM’s assessed needs as £84,678 a year. This was just over half the amount an independent social worker estimated as the annual cost of supporting him (£157,060).

KM’s mother argued that Cambridgeshire’s amount was insufficient and had been irrationally arrived at.

The Court of Appeal found in the council’s favour in June 2011.

Richard McManus QC, Jonathan Auburn, and Benjamin Tankel of 4-5 Gray’s Inn Square acted as Cambridgeshire’s counsel before the Supreme Court.

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16.Feb.2012

A community interest company (CIC) staffed by former Kent County Council employees is to launch judicial review proceedings over the authority’s decision to terminate its funding after just six months.

Project Salus, the CIC, provides services to children and young people in the county, including in relation to mental health needs, drug education and the prevention of bullying.

The services had been provided by the council under the Kent Safe Schools banner until June 2011.

According to the CIC’s law firm, Pierce Glynn, former council employees were encouraged to leave their jobs and join Project Salus on the back of Kent’s decision to provide the company with a three-year grant.

But in December 2011 Kent announced that it would terminate the grant.

Pierce Glynn partner Gareth Mitchell, Project Salus’ solicitor, said: “These are highly-regarded and critically important front-line services whose loss will impact on some of the most vulnerable children in Kent. The Project Salus directors and staff took Kent’s commitment to support innovative ways of delivering public services at face value and had developed a highly-efficient model of service provision that would have delivered these services for a substantially reduced cost.

“However, only six months into this new venture their funding has been cut without any apparent appreciation of the effects on the children who benefit from the KSS services and on their parents and schools.”

Kent County Council declined to comment.

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15.Feb.2012

A recent Upper Tribunal Administrative Appeals Chamber decision has provided greater clarity on the entitlement to housing benefit of people who lack capacity. Morris Hill and Ken Slade report.

In Wychavon District Council v EM [2012] UKUT 12 (AAC) the Upper Tribunal Administrative Appeals Chamber recently reviewed an earlier decision to find that an individual who lacked capacity to enter into a valid contract was entitled to receive Housing Benefit payments from Wychavon District Council and had a corresponding obligation to pay for necessary accommodation.

The obligation was not, Upper Tribunal Judge Mark held (overturning his earlier decision), contractual, but arose either at common law or under section 7 of the Mental Capacity Act 2005.

Background

The living arrangements of EM, who is profoundly mentally and physically disabled, are significant. Her parents moved her from a care home, with the support of Worcestershire County Council, which also encouraged the understanding that an entitlement to housing benefit would follow such a move. EM’s parents moved her to an annexe that they had built at their home, EM having previously lived in the house’s garage, which had proved unsuitable since EM needed round the clock care from three carers who also needed their own accommodation.

EM’s parents were unable to afford this new arrangement, the annexe having been funded by way of a loan, without Housing Benefit, so EM’s father entered into a purported tenancy agreement with her at what was agreed to be a reasonable rent for an indefinite term. The key question for the Upper Tribunal was whether this created a liability that attracted Housing Benefit.

Facts

As we previously reported the Upper Tribunal had in 2011 allowed an appeal brought by the council against a decision of the First-tier Tribunal allowing an appeal against its decision that EM was not entitled to housing benefit. This was on the basis that EM’s father knew that her significant learning disabilities meant that she lacked capacity to enter into a tenancy agreement. At the time the tenancy had been granted there was no one with any power to enter into such an agreement on behalf of EM. Consequently the Upper Tribunal held that EM “had no liability to pay rent by reason of a document to which she was not a party and of which she had no knowledge or means of knowledge. Nor is there any other basis on which any liability for rent could be imposed on her…”.

EM sought permission to appeal the decision and the Upper Tribunal exercised its powers under rules 45 and 46 of the Tribunal Procedure (Upper Tribunal) Rules 2008 to review its earlier decision. The power of review exists in circumstances where, amongst others, the Tribunal overlooked a legislative provision or binding authority which could have had a material effect on its decision (rule 45(1)(a)  of the 2008 Rules).

On reviewing his earlier decision Upper Tribunal Judge Mark set it aside. He found that, notwithstanding the fact that there was no contract, EM was liable to make payments for her occupation of the property and was therefore, on the face of it, entitled to receive Housing Benefit from Wychavon District Council.

At this hearing, EM had brought forward an entirely new ground – contracts for necessities, either under section 7 of the Mental Capacity Act 2005 or the common law position as set out in In Re Rhodes (1890) 44 CH D 94 – and it was this which caused Judge Mark to set aside his earlier decision.

Section 7 provides:

7. Payment for necessary good and services

(1) If necessary goods or services are supplied to a person who lacks capacity to contract for the supply, he must pay a reasonable sum for them.

(2) “Necessary” means suitable to a person’s condition in life and to his actual requirements when the goods or services are supplied.

As section 7 had not previously been referred to in either the First Tier or the Upper Tribunal, Mark J felt he was able to review his decision. In doing so he considered the common law position in relation to the supply of ‘necessaries’ as set out in In Re Rhodes, namely that a person lacking mental capacity has an obligation to pay a reasonable amount for ‘necessaries’. The provision of accommodation is a necessary if it is suitable having regard to the needs and resources of the person and has been provided with the intention that it would be paid for.

Judge Mark concluded that such an obligation arose at common law in this case because the evidence confirmed that the accommodation was reasonably necessary, having regard to EM’s needs and resources, and had been built by her parents on the understanding that she would pay them rent funded by Housing Benefit, such an understanding having been encouraged, as noted above, by the Adult Social Services Department of Worcestershire County Council.

Wychavon District Council sought to argue that that it was not necessary because EM had previously lived in her parents’ garage and could do again; but, as Mark J pointed out, this flew in the face of the evidence which had been accepted by the judge in the First-tier tribunal and was in some respects uncontested.

Although Judge Mark expressed some doubt whether ‘services’ in section 7 was wide enough to cover the provision of accommodation, he had no doubts that the common law rules as to necessaries survive the statutory provision and that the provision of accommodation was an obvious ‘necessary’.

Therefore Judge Mark was satisfied that EH was under an obligation to pay a reasonable sum for her accommodation and therefore remitted the matter back to the Council to calculate her entitlement to Housing Benefit.

Comment

The original decision of the Upper Tribunal, when handed down in March 2011, caused concern as to the affect it would have on those that lacked capacity and their entitlement to housing benefit. The earlier decision of Judge Mark coupled with the decision in G v E & A Local Authority & F (2010) EWHC 621 (Fam), in part, led to a big increase in applications to the Court of Protection for orders regarding tenancies and the introduction in June 2011 of the guidance, “Applications to the Court of Protection in relation to tenancy agreements”.

The review by Judge Mark helps to clarify the position and will allow local authorities to continue to award housing benefit to those for whom arrangements are made in order to live their lives as independently as possible. This underlines the general thrust of social care policy to strive to maximise the independence of those with learning difficulties and mental illness.

As Judge Mark noted, housing benefit is not only payable where a person is liable for rent but in respect of payments for the dwelling which is occupied as a home, and EM was so liable. Wychavon argued that such matters were best dealt with via the Court of Protection, with which Judge Mark agreed, while also pointing out that such applications took many months and, pending such an application, people without capacity should not be left without necessaries.

It seems the issue here was not in fact between EM and Wychavon but rather between Wychavon and Worcestershire, with Judge Mark noting that, had there been no obligation on EM to pay, one or other of local authority would have had to provide suitable accommodation for her. He went on to comment that it would be unfortunate if a series of appeals at public expense had been made necessary because of disagreement between the authorities as to who should pay for essential provision.

As mentioned in our original update it is vitally important to ensure proper care planning takes place for individuals that are eligible to receive packages of care and this is particularly so when different local authorities are concerned with the individual’s benefit entitlement and care arrangements.

Morris Hill is Associate in the Local Government team and Ken Slade is Principal Professional Support Lawyer at national law firm Weightmans LLP. Morris can be contacted by email at This email address is being protected from spambots. You need JavaScript enabled to view it., while Ken can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it..

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15.Feb.2012

In the face of growing political opinion that human rights laws have "gone too far", the Supreme Court has given an important judgment which will extend the reach of the Human Rights Act with significant implications for public authorities who are responsible for vulnerable adults and children. Nigel Poole analyses the judgment.

In Rabone v Pennine Care NHS Trust [2012] UKSC 2, judgment was handed down by the Supreme Court on 8 February 2012 in a case which will have significant implications for public bodies in the way they protect the lives of vulnerable individuals for whom they have assumed responsibility.

A claim was brought by the parents of a 24-year-old woman who committed suicide shortly after having been wrongly allowed home from a psychiatric unit where she was being treated. The trust admitted negligence and paid compensation to the deceased's estate. The claimants were however not otherwise entitled to damages for their bereavement (since Melanie was over 18 years old) and so brought a claim under the Human Rights Act for damages, alleging that the trust, a public authority, had acted in contravention of article 2 of the European Convention on Human Rights (ECtHR).

Article 2 provides that everyone's right to life shall be protected by law. The ECtHR has interpreted article 2 as imposing three distinct duties on the state: a duty to refrain from taking life, a duty to investigate deaths for which the state might be responsible and a positive duty to protect life in certain circumstances. This third duty includes a duty to take operational steps to safeguard the life of an individual whose life is at risk from the criminal acts of another or from themselves. By the Human Rights Act that duty is imposed on public authorities within the United Kingdom.

Prior to this judgment, the courts had recognised certain limited categories of person to whom this operational duty might be owed, for example, prisoners, conscripts and psychiatric patients detained under the Mental Health Act. Melanie Rabone had not been detained - she was a so-called voluntary patient - but would have been detained had she not complied with her treatment or had she tried to abscond. The Supreme Court has held that the operational duty was owed to her even though she was not detained, but the judgment has implications beyond the particular facts of Melanie's case.

1. In relation to the article 2 operational duty the ECtHR has in effect developed rules of tortious responsibility which run alongside and are not at all limited by the domestic common law rules of tort - "in the event of a breach of the operational duty, the range of persons entitled as victims to bring claims against the state, and the nature and scale ofcompensation or just satisfaction which they may receive will depend upon legal principles established by the ECtHR" - per Lord Mance
2. To whom is the duty owed? Where a person is known to be, or ought to be known to be at a real and immediate risk of suicide or at risk of death at the hands of another, a public authority will owe the operational duty to protect them if the authority has assumed responsibility for their welfare and safety, and where the individual is particularly vulnerable and/or the risk is of an exceptional nature rather than one to which the individual might ordinarily be expected to be exposed. However the courts will interpret the duty so as not to impose an impossible or disproportionate burden on the public authority having regard to the operational choices it must make in terms of priorities and resources.
3. The circumstances in which public authorities will be under an operational duty to take steps to protect the life of a person for whom they are responsible are still being tested and are likely, as in this decision, to continue to expand. Lord Dyson observed that "the jurisprudence of the operational duty is young. Its boundaries are still being explored". He considered that the ECtHR had been tending to expand the boundaries of the duty.
4. The domestic courts will not be confined by, but will "take into account" European case law as they are required to by Parliament under the Human Rights Act: "If the domestic court is content to decide a Convention challenge against the public authority and believes such a conclusion to flow naturally from existing Strasbourg case law (albeit that it could be regarded as carrying the case law a step further), then it should take that further step... that is precisely the position in this very case." - per Lord Brown.
5. Previously the Court of Appeal had held that the operational duty arose only in respect of those whom the public authority had detained. Now it is clear that detention is not a necessary condition for the duty to arise. So, the duty might arise in relation to psychiatric patients whether in hospital or in the community. It might arise in relation to vulnerable children and adults in care homes or otherwise under the care of a local authority. In Mitchell v Glasgow CC [2009] AC 874 the House of Lords contemplated, but on the facts rejected, a claim that a local authority owed an operational duty to protect the life of a tenant. In Watts v United Kingdom (2010) EHRR 66 the ECtHR appeared to accept that an operational duty might be owed to an elderly resident compelled to move from her existing care home. Following Rabone, it is possible that such duties might, in exceptional circumstances, be imposed on public authorities in relation to vulnerable tenants and care home residents if they are at a real and immediate risk of death.
6. Such claims for damages under the Human Rights Act may be brought by close relatives of the deceased - they are entitled to do so by reason of being "victims" under the Convention and the Act. They will not necessarily lose their status as victims simply because compensation has been paid to the deceased's estate. They may even remain entitled to bring a claim for damages under the Human Rights Act even after they have been paid damages for their bereavement, if those damages do not afford "sufficient redress".
7. In assessing the level of damages the Courts will be guided by awards given in Strasbourg, such awards for breach of article 2 ranging from EUR 5,000 to EUR 60,000. It will be noted that the upper end of the bracket comfortably exceeds the present level of the bereavement award under the Fatal Accidents Act 1976. Also, as the Rabone case illustrates, the range of persons entitled to claim damages is wider than those who are entitled to bereavement damages under the 1976 Act. Similar claims may be brought for contraventions of other articles of the Convention, including article 3.
8. Enhanced, Middleton-style Inquests, which investigate thoroughly the circumstances of a death, are already required in any case where a public authority might have been in breach of the operational duty under article 2. Following Rabone that group of cases will expand: there will be more so-called "enhanced Article 2 Inquests".

It can be seen that this decision may lead the way for further claims where public authorities have failed to protect the lives of vulnerable individuals for whom they have assumed responsibility. What is, in effect, a new tort has been imposed on public authorities through the mechanism of the Human Rights Act - a development sure to further infuriate the Act's opponents but which will be welcomed by those who have lost loved ones in circumstances which the public authorities could and should have avoided.

Nigel Poole is a Barrister at Kings Chambers, Manchester and Leeds. He acted for Mr and Mrs Rabone in the case, and was instructed by Pannone LLP.